A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Saturday, 29 September 2012

High Commissioner Speech to United Nations on Capital Punishment

On Thursday, the High Commissioner for Human Rights delivered a speech in conjunction with the United Nations General Assembly. Here it is:

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Ministerial-level event on “The Death
Penalty: From Moratorium to Abolition”

Statement by Ms. Navanethem Pillay, High
Commissioner for Human Rights

United Nations General Assembly

New York, 27 September 2012,

Mr. Chairperson, Excellencies, Ladies
and Gentlemen,

I am grateful to the Permanent Missions of France and Benin for
organising this ministerial-level event, which brings together those states
that are committed not to apply the death penalty.It is no surprise that we have plenty of
delegates in the room, because the vast majority of states - 150 out of the 193
Member States of the United Nations - have abolished the death penalty or
introduced a moratorium, in law or in practice, on its use.The support for abolition resonates across
regions, legal systems, traditions, customs and religious backgrounds.

The United Nations stands with you.It is our established policy that the United Nations will neither
establish nor directly participate in any judicial mechanism that allows for
capital punishment.

The death penalty is hardly reconcilable with fundamental human rights,
starting with the human right to life.As Secretary-General Ban Ki-Moon recently remarked, the “taking of life
is too absolute, too irreversible, for one human being to inflict it on
another, even when backed by legal process.”It is also becoming increasingly obvious that the death penalty
invariably entails cruel, inhuman and degrading treatment in violation of
international law.Time and again,
research casts legitimate doubt on methods of execution that are supposedly
“humane.”Moreover, the cruelty of the
death penalty starts long before the actual killing, when the condemned person
sits on death row, caught in a terrorizing limbo between the fear of violent
death and the faint hope that appeals for due process or clemency could spare
his life after all.

Almost everywhere, the death penalty is also intricately linked to the
darkest episodes of history – dictatorship, war, colonial domination, foreign
occupation and oppression of human rights.In 1981, when Robert Badinter introduced the law by which France
abolished the death penalty, he already observed that “without exception,
wherever in the world dictatorship and disdain for human rights triumph, one
finds inscribed in bloody letters, the death penalty.”This observation certainly applied to my own
home country, South Africa, where we experienced how the Apartheid Regime used
the death penalty as a tool of oppression.We are proud that our Constitutional Court declared the death penalty
unconstitutional in 1995 and that the abolition of this sentence was cast into
law two years later.

Remnants of the historical links between oppression and the death
penalty remain visible even in the few democratic states that retain the death
penalty.Its application tends to be
discriminatory and the poor, the powerless and persons belonging to minority
communities make up a disproportionate number of those who are executed.

Ladies and Gentlemen,

Year after year, more countries are turning away from the death
penalty.This is also reflected in the
increasingly wide support to the annual General Assembly resolution calling for
a worldwide moratorium on executions.

Yet, I will not hide the fact that there are also setbacks.I am particularly saddened when some States
resume executions after decades.In
addition, there have been isolated instances where states have reintroduced the
death penalty for certain offences.From
the perspective of international law, this is problematic.On several occasions, the United Nations
Human Rights Committee and the Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions have criticized states that have expanded the scope of the
death penalty.They considered its
reintroduction for certain offences to be incompatible with Article 6 of the
International Covenant on Civil and Political Rights.

In this regard, I note that Article 6 (2) of the International Covenant
clearly provides that only “in countries that have not abolished the death
penalty, sentence of death may be imposed” (and that only for the most serious
crimes and subject to the most stringent due process guarantees).This suggests that states that have already
abolished the death penalty are no longer entitled to reinstate it.This interpretation is supported by Article 6 (6),
which specifies that the article must not be invoked “to delay or to prevent
the abolition of capital punishment by any State Party to the present
Covenant.”

Ladies and Gentlemen,

I would like to use this opportunity to congratulate all states that
have taken steps in recent years towards the abolition of the death
penalty.They are too numerous to
mention them by name.Abolishing the
death penalty takes political courage.I
deeply regret, however, that there are still efforts calling for the retention
or reintroduction of the death penalty – to manipulate public concerns about
particularly heinous crimes.Such
attempts should be countered with leadership, reason and mutual support.

As a first step, I would urge all states that have not yet done so to
take heed of the theme of this meeting and move from “moratorium to
abolition.”National laws and ideally
the constitution should explicitly outlaw capital punishment.Furthermore, I would encourage you to take an
additional step and reaffirm your commitment to abolition also under international
law.I invite you to join our co-host
Benin and 74 other countries that have already ratified the Second Optional
Protocol to the International Covenant on Civil and Political Rights, aiming at
the abolition of the death penalty.My
Office stands ready to provide you with relevant technical advice, where
necessary.

Moving from moratorium to abolition is not just a technicality.Formal abolition will seal the hard-won
national consensus and prevent it from unravelling in times of political
turmoil when populism and rash decisions abound.

Leaders also need to explain the ethical and practical reasons for
abolishing the death penalty to their constituencies.Unsubstantiated arguments for the death
penalty must be countered.In
particular, there is no proof that capital punishment deters the most serious
crimes more effectively than a credible prospect of imprisonment.Some academic studies even indicate that
murder rates fall when the state itself gets out of the “business of killing”
and abolishes the death penalty.Furthermore, research consistently shows that the best deterrent of
serious crimes lies in ensuring that criminals face a high chance of capture
and punishment within a reasonable time.The certainty of punishment, rather than its severity, deters
criminals.To curb serious crimes, the
focus should therefore lie on reforming the justice system and rendering it
more effective.

I would like to take this opportunity to urge states to increase their
cooperation with one another and with civil society to foster the emerging
abolitionist global consensus.It is
crucial that leaders speak out for abolition and encourage their neighbours and
allies to follow the same path.Even
though the vast majority of states do not apply the death penalty, this
majority does not speak with a sufficiently strong and united voice.I would therefore encourage States and civil
society to use all opportunities to do so, including through support to the
annual General Assembly resolution on the death penalty.

My Office and I stand ready to assist you.My Office carries out a number of activities
to advance the debate at the international and national level, such as seminars
for scholars and practitioners.As High Commissioner
for Human Rights, I strongly believe that there is no right more sacred than
the right to life and I will continue to raise the need for the abolition of
the death penalty in my engagement with leaders.

The death penalty cannot be reconciled with fundamental human rights
values.It is an affront to human
dignity, our shared human dignity.Every
time the State drags a human being to the execution site and kills him in “the
name of the people” – our name – a piece of our own human dignity is shattered.

No comments:

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.